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PEARSON v. MILLER

December 31, 1997

JACQUELINE PEARSON, Plaintiff
v.
BRUCE MILLER and LUZERNE COUNTY CHILDREN and YOUTH, INC., Defendants v. KIDSPEACE NATIONAL CENTERS FOR KIDS IN CRISIS, INC., Third party defendant



The opinion of the court was delivered by: MCCLURE

 December 31, 1997

 BACKGROUND:

 Plaintiff Jacqueline Pearson brings this section 1983 action *fn1" in her individual capacity and as parent and natural guardian of Lindsay Pearson. *fn2" Plaintiff alleges that Lindsay, a minor, was abducted and sexually assaulted by defendant Bruce Miller. *fn3" The alleged incident occurred while Miller was under the custody, care and supervision of the Luzerne County Children and Youth Services, Inc. (Luzerne County C&Y). Plaintiff brings this action against Luzerne County C&Y and against Miller.

 On August 4, 1997, Luzerne County C&Y joined Kidspeace National Centers for Kids in Crisis, Inc. (Kidspeace) as a third party defendant. Kidspeace filed an answer to the third party complaint on November 20, 1997.

 Plaintiff filed an amended complaint on June 16, 1997. It appears from the record before us that plaintiff had no right to amend the complaint without first obtaining leave of court. Federal Rule of Civil Procedure 15(a) allows a party to amend only if no responsive pleading has been filed, or if no responsive pleading is permitted. Neither circumstance applies here. Defendant's motion to dismiss was filed on June 2, 1997, before plaintiff filed the amended complaint. There is nothing in the court record to indicate that the plaintiff received written consent from the defendant to file an amended complaint. Leave of court was, therefore, required, but never sought. However, in the interest of expediency and in recognition of the liberal standards applicable to motions for leave to amend, we will overlook the failure to seek leave of court and consider the amended complaint as properly before us.

 Plaintiff's amended complaint asserts the following claims: 1) a section 1983 claim purportedly based on vicarious liability of Luzerne County C&Y "for the acts or omissions committed by its's (sic) agents, servants and/or employees" (Plaintiff's amended complaint, P 33) (Count I); 2) a civil rights claim asserting that plaintiff was denied equal protection of the law (Count II); 3) a section 1986 claim, 42 U.S.C. § 1986, asserting that defendants conspired to deprive plaintiff of equal protection of the law (Count III); 4) a claim for attorney's fees under section 1988, 42 U.S.C. § 1988 (Count IV); 5) a state law claim against Miller (Count V); 6) a state law claim against Luzerne County C&Y (Count VI); 7) a claim for punitive damages against Luzerne County C&Y (Count VII); 8) a claim for conduct allegedly constituting "an intentional, physical intrusion upon the solitude, seclusion and privacy of the minor plaintiff" which fails to specify whether it is grounded in federal or state law (Count VIII); 9) a second claim for punitive damages, this one being asserted against both defendants (Count IX).

 Before the court are motions by C&Y to dismiss plaintiff's original and amended complaints. We will consider the motion to dismiss the amended complaint as superseding the motion to dismiss the original complaint, and will deny the latter as moot. For the reasons which follow, we will enter an order granting the motion to dismiss the amended complaint to the extent of the relief.

 DISCUSSION

 Rule 12(b)(6) motion

 In deciding defendants' motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other parties of the record." Id. Dismissal is not appropriate unless "it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id.

 The court is not, however, required to credit or lend credence to "'bald assertions'" or "'legal conclusions.'" Morse v. Lower Merion School District, 132 F.3d 902, 1997 U.S. App. LEXIS 35968, at *12, 1997 WL 785534 at *3 (1997), quoting In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997). In ruling on a Rule 12(b)(6) motion, courts can and should reject "'legal conclusions,'" "'unsupported conclusions'", "'unwarranted inferences,'", "'unwarranted deductions,'" "'footless conclusions of law,'" and "'sweeping legal conclusions in the form of factual allegations.'" Id. at 8 n. 8, citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1357 (2d ed. 1997). "Legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Id., quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).

 MOTION TO DISMISS FILED BY LUZERNE COUNTY C&Y

 To prevail under section 1983, plaintiffs must establish the violation of a federally protected statutory or constitutional right by an individual acting under color of state law. Morse, 132 F.3d 902, 1997 U.S. App. LEXIS 35968, 1997 WL 785534 at *4. Here, the abuse was not committed by a state actor. Miller, the perpetrator of the alleged abuse, was committed to foster care. *fn4" Individuals in foster care are not agents or employees of the state, and therefore are not, in any sense of the term, state actors. See generally: K.H. through Murphy v. Morgan 914 F.2d 846, 852 (7th Cir. 1990) (Foster parents, even if paid by the state, are not state actors). For that reason, liability can attach to the county only if the plaintiff can demonstrate a basis for recovery not dependent upon a showing that Miller was a state actor. *fn5" See: McComb v. Wambaugh, 934 F.2d 474, 478 (3d Cir. 1991) ("The distinction between harm inflicted by a state agent and injury caused by a private individual is critical.")

 In general, there is no constitutional duty on the part of the state to protect citizens from abuses or crimes committed by other private citizens. Morse, 132 F.3d 902, 1997 U.S. App. LEXIS 35968, 1997 WL 785534 at *4 and Kneipp v. Tedder, 95 F.3d 1199, 1210 (3d Cir. 1996). That was the holding of the United States Supreme Court in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989).

 In DeShaney, a young boy was physically abused by his father, to the point of suffering severe, permanent injuries. The abuse was reported to county child welfare authorities, but the child was not taken into protective custody. The child and his mother sued the county, its department of social services, and several employees of the department for their failure to protect the boy. 489 U.S. at 191-193. The Supreme Court held that no substantive due process right exists to require the states to provide protective services:

 
Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual....If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

 489 U.S. at 196-197 (citations, footnote omitted and emphasis added.).

 The courts have recognized only two exceptions to the general rule established by the holding in DeShaney. Liability can arise under section 1983 for acts committed by a private citizen only if: 1) the danger or risk of harm which led to plaintiff's injury was created by the state: or 2) the state entered into a special relationship with the plaintiff under which it assumed a duty to ensure plaintiff's continued well-being. Morse, 132 F.3d 902, 1997 U.S. App. LEXIS 35968, 1997 WL 785534 at *4 and Kneipp, 95 F.3d at 1205-09.

 In Kneipp, the Third Circuit adopted a four-part test for applying the state-created danger theory. In surveying the rulings of other courts applying the theory, the Third Circuit found that they typically share four common elements:

 
(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; [and] (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.

 Kneipp, 95 F.3d at 1208, quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.), cert. denied, 516 U.S. 858, 133 L. Ed. 2d 107, 116 S. Ct. 165 (1995). In addition to these four factors, the plaintiff must allege and prove that the state acted with deliberate indifference. Morse, 132 F.3d 902, 1997 U.S. App. LEXIS 35968, 1997 WL 785534 at *8.

 Liability arises under the state-created danger theory only if a state agent or employee knowingly placed the plaintiff, in particular, in a position where he or she was likely to come to harm and created or substantially contributed to the circumstances which caused the injury he or she suffered. Kneipp, 95 F.3d at 1208. See also: Johnson v. Dallas Independent School District, 38 F.3d 198, 200 (5th Cir. 1994), cert. denied, 514 U.S. 1017, 131 L. Ed. 2d 218, 115 S. Ct. 1361 (1995). Merely creating a situation which exposed the public in general to an obvious hazard or risk of harm is not enough. The risk created must be particular to the plaintiff, and the harm must be foreseeable, a requirement the Third Circuit has labeled the "foreseeable plaintiff" requirement. Morse, 132 F.3d 902, 1997 U.S. App. LEXIS 35968, at *32, 1997 WL 785534 at *10 & n. 11. See also: Estate of Rosenbaum by Plotkin v. City of New York, 975 F. Supp. 206, 219-222 (S.D.N.Y. 1997) and Davis v. Fulton County, Arkansas, 884 F. Supp. 1245, 1254 (E.D.Ark. 1995), aff'd, 90 F.3d 1346 (8th Cir. 1996). If this were not the case, "where the state actor has allegedly created a danger towards the public generally, rather than an individual or group of individuals, holding a state actor liable for the injuries of foreseeable plaintiffs would expand the scope of the state-created danger theory beyond its useful and intended limits." Morse, 132 F.3d 902, 1997 U.S. App. LEXIS 35968, at *34, 1997 WL 785534 at *11 n. 12. This does not, however, require the plaintiff to show that he or she in particular, and no one else, was placed in foreseeable peril. The plaintiff may recover if he can demonstrate that he "was a member of a discrete class of persons subjected to the potential harm brought about by the state's actions.....The primary focus when making this determination is foreseeability." 132 F.3d 902, 1997 WL 785534 at *11.

 Most decisions which have allowed the case to proceed under the state-created danger theory have involved one of two basic scenarios. Kneipp, 95 F.3d at 1206-07. In the first, a state actor altered plaintiff's circumstances in such a way as to render the plaintiff more vulnerable to danger or risk of harm before coming in contact with the state's agent. For example, in Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938, 112 L. Ed. 2d 305, 111 S. Ct. 341 (1990), the defendant police officer arrested a drunken driver and impounded his car, leaving the driver's female passenger stranded alone at night in a crime-ridden area with tragically predictable results. The Ninth Circuit Court of Appeals stated: "The fact that [Officer] Ostrander arrested... [the driver of the vehicle], impounded his car, and apparently stranded... [the plaintiff] in a high-crime area at 2:30 a.m. distinguished Wood from the general public and triggers a duty of the police to afford her some measure of peace and safety." 879 F.2d at 590. In K.H. ex rel. Murphy v. Morgan, the state removed a seventeen-month-old child from the custody of her parents, then shuttled her from foster home to foster home where she was molested, abused, and not properly cared for. The Seventh Circuit found that, having removed her from the custody of her natural parents, the state could not then "place her in a position of danger, deliberately and without justification, without...violating her rights under the due process clause of the Fourteenth Amendment." 914 F.2d at 849. Similarly, in White v. Rochford, 592 F.2d 381, 384-85 (7th Cir. 1979), the defendant police officer arrested the driver of a vehicle, leaving the minor children passengers stranded alone in the car on a busy highway. In each of these cases, the state's agent altered the plaintiff's situation in such a way as to place him or her in the path of a peril he had not faced before state intervention and then did nothing to remove or eliminate the risk that he had created. Compare: Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983) (police officer who came upon crashed vehicle and made no attempt to see if the occupants were in jeopardy not liable under section 1983, because the officer merely came upon the situation, but did nothing to cause or create the accident) and Miller v. Webber, 1997 U.S. Dist. LEXIS 17932, at *4, 1997 WL 698043 at *1 (E.D.Pa. Nov. 4, 1997) (State-created danger theory cannot be premised on "nonfeasance of the failure of an official to act or to investigate").

 In the second scenario, a state employee created circumstances which placed the plaintiff in contact with a convicted criminal offender in state custody or still serving out his criminal sentence. For example, in Cornelius Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied, 494 U.S. 1066, 108 L. Ed. 2d 785, 110 S. Ct. 1784 (1990), the state not only placed in a work program an inmate it knew had a history of violent behavior, but also allowed him to work under the supervision of an untrained and unarmed city employee. Two prison inmates assigned to the program abducted the plaintiff, a city employee, from the town hall and held her hostage for three days. Thus, in this and other cases allowing recovery by the plaintiff, an agent of the state placed the plaintiff in harm's way. Compare: Lovins v. Lee, 53 F.3d 1208, 1211 (11th Cir. 1995) (distinguishing Cornelius and expressing reservations about its continuing validity post- Collins v. City of Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992).

 In contrast, courts which have ruled the doctrine inapplicable had before them cases in which the state's conduct arguably increased the risk that some member of the general public would come to harm, but did not measurably increase the danger to the plaintiff in particular. See, e.g., Mark, 51 F.3d at 1140-53 (alleged civil rights violation based on a policy which affects the public in general does not create a basis for application of the state-created danger theory); Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir. 1992) (police action did not create the hostage situation which led to plaintiff's decedent's death); L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), cert. denied, 508 U.S. 951, 124 L. Ed. 2d 660, 113 S. Ct. 2442 (1993); Brown v. Grabowski, 922 F.2d 1097 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 115 L. Ed. 2d 997, 111 S. Ct. 2827 (1991), (failure to protect victim of domestic abuse from her attacker did not give rise to a constitutional violation); Bryson v. City of Edmond, 905 F.2d 1386, 1392 (10th Cir. 1990) (state was not constitutionally responsible for death of post office employees shot by a fellow postal worker, since the state did not create the danger or take the plaintiff from a position of relative safety to a position of danger); and Jackson ...


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